19770711 TZHC Dodoma 1

IN TND HIGH COURT OF TANZANIA AT DOD3M APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL Not, 36 OF 1977 ORIGINAL CRIMINAL CASE No. 324 OF 1976 OF THE DTRICT COURT OF IRINGA DISTRICT AT IRINGA. BEFORE: G.B. MATUI , . . . . RESIDENT NAGISTR.TE D.P.PO , . . ... . APPELLANT versus B. 8373 D/G LURENCE . . RESPONDENT CHARGE: Corrupt transactions c/s 3(1) (3) (a) of the Preventi on of Corruption Act No 1 6/71 J U D G M E N T .IPETA, J. The respondent:, No, B 8373 D/C Laurence, was charged before Iringa district court of the offence cited in the charge sheet as "corrupt transactions c/s 3(1)(3)(a) of the Prevention of Corruption Act, 1971 After a full triaL, the learned ±esident magistrate acquitted the respondent on 'the ground that the charge was bad for duplicity, AgainLthat acquittal the Director of Public Froseci.fcions now appeals on the following grounds:- 1 That the learned trial magistrate erred in 3 aw in holding that the charge is duplex. 2 That alternatively and without prejudiôe to the aforesaid, that the defect, if any;, was curable and 3 That the learned trial magistrate erred in not exercising his judicial discretion under section 209 of the Criminal Procedure Code, On the basis of those grounds, the Director of Public Prosecutions prays to this court to set aside the order of acquittal of the ospondeiY and (a) find the ±espondent guilty as charged or (b) in -the alternative., order retrial The particulars of the charge stated: 11 BA 8373D.Ci. Laurence is charged on the 5th day of June, 1976 at about 12,15 houré at Mwangata within Iringa district, by himself, corruptly solicited and obtained cash shs 50/- in Tanzania currency No0 BP 677439 for shs. 2-0/- BF 670324 for shs, 20/- and CC 280181 for shs. 10/- from one Bonja=i s/o Ngina as an inducement for not charging the said Benjamini Mgina with ths o'fonce of stealing which is in relation to his princirll?s affairs." . . . .2 - 2 To start with, I will address my mind to ground 3 of the petition. As pointed out above, the learned resident magistrate did not acquit the accused until aftor he had conducted the ftU trial. Section 209 of the Criminal Procedure Code states:- "209(1) Where, at any stage of a trial, it .pp cars to the court that the 'charge is defective, either in substance or in forth, the court may make such order for the alteration of the charge either by way of amendment of the charge or bythc substitution or addition of a new charge as the court thinks necessary to meet the circumstances of the case unless having regard to the merits of the case, the required dmendrients cannot be made without injustice, and all amendments made under the provisions of this subsection shall be made upon such terms as to the court shall seem fit." (The underscong is mine.) In the instant case, the learned resident magistrate, it would seem did not notice the alleged duplicity either before or duing the course of the trial. He proceeded with the trial to the end. It would appear that he only addressed his mind to the question of duplicity of the at the time of preparing the judgment. That being so, he could not at the sta,go have invoked the provisions cf section 209(1) of the Criminal Procedure Code. He could oni: have invoked those provisions during the trial and not after completion of hearing of the evidence for the prosecution and the defence. As was iDointed out by Biron, J. inRlic v. Salehe Ruhuna (1973) LRT n,83: "As will be noted, the section commenced with t i he re at any stagO of a trial...etc., which means what it says, that at any stage of a trial a court may, in certain circumstances amend the'r charge, but not when atrial has been completed,, as it was in this case," and as it was in the instant case. With respect, therefore, I do not think that it was open to the learned resident magistrate to invoke the pvisions of section 209 at that stage of the proceedings. The second question to which I must now turn is whotho: the charge as laid is duplex. In order to decide this question it is necessary to examine the i5rovisions of secti( ,-. 3(1 of the Prevention of Corru,tjon Act, 1971. Section 3(1) of the Act states: "3(1) Any parson who by himself, or by or in conjuction with any other person, corruptly solicits, accepts or obtains; or agrees to accept or attempts to obtain, from any person for hinself or for any other person, any advantage as an inôcement to or reward for, or otherwise on account of, any agent(whether or not such agent is ti same person as such first'nentioned person) doing, or forebearing to do, or having done or forborne to do, anything in ±'alation to his principal's affairs or'business, shall be guilty of an offence." From the wording of the subsection, it appears to rae t':' several offences are created by the subsection. ... .... - 3 One ofcnce created by the subsection is corruptly soliciting an advantago by an agent in relation to his p rincipalts affairs; the second is of corruptly accepting or ohtaiing or receiving such advantage by such agent; the third is of agreeing that of agroening to corruptly accept an advantage; and the fourth is that of attorTitping te corruptly obtain an advantage. Strictly speaking, therefore, inasmuch as the particular. to the charge alleged that the respondent "corruptly solidted and obtained" the ac1.vantage, the charge contained two separat offences. It was, therefore duplex. It was submitted by the learned state attorney that although charges preferred under this subsection have often contained the words "corruptly solicited and obtained" and that this is the first time that they have been questioned on tho ground of duplicity That may be so, but on my understanding of those provisions, to ccrruptly solicit an advantage" is one offence, and to "corruptly accept, r.coive or obtain an advantage andther cff'onco." If I am right it this, then, strictly speaking, a charge that alleges that the accused both solicited and obtained or received an advantage corruptly is duplex. The more diificult question, however, is whether the duplicity was of such a nature that it cannot be cured. In the case of Cherere sZo Gukuli v. R. (1955)22 E.A.C.A 478, the Court of Appc irn.Af'rica reviewed th cases on'.iae question as to whether a conviction pursuant to a such which is duplex must necessarily be quashed.. The Court there stated, at page 482: ...,.the test ..... which we must amply to answer the question, what has been the f'f'ect of the defect in the charge on the trial and conviction of the appellant, must be whether there has in fact boon a failure of justice." The Court, however, added, at page 483: "In Odds. T ore's case ( this court said: 'Unlss this court is able to say without hesitation that the accused has not ben prejudiced by the duplicity there will be no other course open to it than to quash the conviction,t We think it is inpossible to say, and certainly no court has so far as we are aware ever yet said, that an accused person is not ;rejudiced when offences are charged in one count in the alternative; he does not know precisely with what he is charged, nor of what of'f'ence he has been convicted. It is, indeed, very difficult to say that a broach of an elementary principle of criminal procedure had not occasioned failure of justice." n my own view of that judgment I do not think that the Court intended to mean ths.t duplicity is necessarily always fatal to a conviction. The principle seems to me to be that a court must consider whether or not the duplicity has occasioned a failure of justice, and in deciding that quost- the nature of duplicity end other circunstances of the case must be considered. . . . .4 - 4 - I am fortified. r view by the decision of the Supreme Court of Kenya in the case of LabanKoti V. R. (1962) E.A. 439. In that the apellant was charged with and convicted of wrongfully atterpting.'to interfere with or influence witnsses in a judicial proceecing either before or after they had given evidence c/s 121 (1)(fof the Kenya Penal Code. On appeal it was suggested that th charge might be bad for duplicity, firstly because it alleged that the appellant "wrongfully attempted to interfere or influence" witnesses, and secondly bcauso it alleged that such attempt occurre.d "either before or after" the witness had given evidence.. The court quoted th above—quoted passages from Cherero Gukuli's case and said; at page 440-441: "This last extract certainly suggests strongly that duplicity in a charge is nearly always a fatal defect but in our view it does not go so far as to state that it is always necosarily fatal. It says that it is very difficult, not that it is always impossible to say, that a breach of the elementary principle of criminal procedure has not occasioned a failure of justice. The tst still remains as to whether or not a failure of justice has occurred. In our opinion the result of the application of this test must depend to some •xtont upon the circumstances of the case and the nature of the duplicity." With respect, I agree with that statement as a correct statenr: of the principle.to be applied in deciding the effect of duplicity of a charge. The next question I hvo to consider in the instant case, therefore, is whether from the nature of the duplicity and other circuustancs the duplicity occasioned a failure of justice. The evidence adduced by the trial court was that after the accused had solicited an advantage corruptly from one Benjamini Mgina, he hater accepted the advantage of shs. 50/—.. The charge clearly alleged that he corruptly obtained shs. 50/— from B,njamini. Throughout his cross exanination of witnesses, the respondent was challen:.ing the allegation that he received any money at all, and in fact insisted that the money was plan±. his person by his fellow police officers who searched him and arrested him. In his defence the respondent again denied.having receiv the money and said that no one had seen him receiving the money. It is also not irrelevant to note that the respondent has been a police officer for the last six years and had been dealing with corruption cases since 1973. Having regard to the nature of the duplicity, the evidence of the prosecution, the trend of the respondent's cross- examination of the prosecution wiesses, the gistof his defence, and his experience as a police officer, I am of the considered view that the duplicity of tI.e charge in this case did not at all occasion a failure of justice'. It is, thorefor: curable under the provisions of section 346 of the Criminal Procedure Code. The lea med resident magistrate, therefore, and with respect, erred in basing the acquittal on the ground of duplicity. The final question I should now consider is as to what should be done in the circumstances. . . . . •. .5 FIM 5 - The learned state attorney hs submitted that as a first appellate court I am entitled to reviw the evidence nd come to my own findings of fact. I agree that a first arpellate court is entitled to review the evidence and form itscwfl i.nion thereon, but always bearing in mind that it has not had the advantage of the trial magistrate of seeing and hearing The witnesses. In this case, the decision on the nei'ite depends entirely on the credibility of witnesses. Uniappily, the learned resident magistrate did not evaluate -th(-, evidence, and he did not cobe to any conclusions as to which witn'sses he accepted as truthful and which onc•s were untruthful. Indeeg, he made no findings of fact. He confined himself to the legJ issue of The duplicity of tho charge. In those circunstanc'.s, I an handcupped. Although in principle I can evaluate the evidenè and con e to my own findings of fact thereon, I do not think it would ho fair to the Republic or to the respondent that I should do so in the circumstances of this case. The alternative prayer is that I should order retrial and I will now consider whether or not to grant that prayer. Under the provisions of section 319(1)(c) of the Criminal Procedure Code, this court is empowered to alter or reverse any order and to make any amendment or any consequential or incidental order that may appear just and proper. A retrial, however, should not be o:.:'dered where it is likely to cause an injustice to the accused person. (Man1 _Reubc (1966)E.i. .343, 344). In the instant case, the trial court nver considered the truthfulness or otherwise of the prosecutiont s wit:.esss, and it likeiso never considered the reasonableness or othr- wise of the respondent's evidence. The respondent has. n::ver been committed to prison, and he was in fact never in r.mnnd custody throughout the trial. The exhibits are easily identifiable, and theru is nothing to suggest that, th prosecution would he likolr to "fill in gaps" in their case. There is nothing therefore, to suggest that a retrial would be prejudicial to the ros:ondent. In these circumstaics, and bcaring in mind the relative seriousness of the offence. I am of the view that justice demands that an order of retrial be ordered. In the result the appeal is allowed. The learned resident magistrate's order of acquittal of the respondent and all the proceedings before him aro hereby sot aside. It is ordered that the respondent be tried d.c noiro. before another magistrate with competent jurisdiction ("(''( •y r ( B.D. CHIPDTA JUDGE /1 Delivered in open Court as Dodoma this day of July 1977.. B.D.. CHIPETA 1 JUDGE.